Director of Public Prosecutions v Stanton

[2015] VCC 464

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JORDON STANTON

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2015
DATE OF SENTENCE:	22 April 2015
CASE MAY BE CITED AS:	DPP v Stanton
MEDIUM NEUTRAL CITATION:	[2015] VCC 464

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:              Sentence – Indecent act with a child under 16
Legislation Cited:     Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:            Boulton v The Queen [2014] VSCA 342

Sentence:Convicted and sentenced to a Community Corrections Order for a period of 3 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Rezsneki	Solicitor for the Office of Public Prosecutions
For the Offender	Ms B. Kelly	Patrick Dwyer

HIS HONOUR:

1Jordon Stanton[1] has pleaded guilty to two charges in this Indictment of the commission of an indecent act with a child under the age of 16.  These two offences took place between the period of November 2010 and December 2011. 

[1] Jordon Stanton is a pseudonym

2The seriousness of these matters is demonstrated from the fact that an offence, of which each of these charges, is a breach of s.47(1) of the Crimes Act1958 (Vic), carries with it a maximum penalty prescribed by Parliament of ten years. This legislation is designed to be protective and is, given the emphasis on the age of the child. At the time of these offences Mr Stanton was 35 years of age, the child involved was between 14 to 15.

3Exhibit A tendered and accepted by counsel on behalf of Mr Stanton is the summary of the offending.  I have already spoken about the age differential.  The relationship came about from the fact that the complainant and Mr Stanton were, in fact, next door neighbours with both families being well known to each other.  There were circumstances where Mr Stanton’s younger children played in the respective homes and as a result of those circumstances the first of the events, not a charged event, occurred.

4Approximately when the complainant was some 14 years old on an occasion when Mr Stanton’s children were playing with her and they had gone inside to get something, Mr Stanton leant into the cubby house and kissed the complainant on her mouth.  As I say that matter is not a matter for which I am dealing with but it is a matter put by way of context.

5Approximately a week later on an occasion somewhere between the time period that I have spoken about, again, the complainant was at Mr Stanton’s home playing with Mr Stanton’s daughter.  She remained there whilst the daughter ate her dinner and then tucked her into bed.  She was about to leave the home when the accused grabbed her from her behind and turned her around.  He then kissed her with an open mouth and touched her breast with his hands.  To use her words this continued for "about not even ten seconds" and such touching, I should stress, was over her clothes.  They are the matters that make up Charge 1, indecent act with a child under the age of 16.

6Approximately two weeks subsequent to such incident on another occasion again the complainant was at Mr Stanton’s home and was sitting on the lounge room floor watching a DVD with Mr Stanton’s children.  Mr Stanton entered the lounge room, sat next to her and placed a blanket over both their legs.  He then put his hand on his leg, slid his hand up her leg and touched her on the vagina under her school skirt.  But, importantly, over her underwear.  This makes up the circumstances which represent the second charge, again, a charge of indecent act with a child under the age of 16.

7As is accepted and was stressed by your counsel in the plea, Ms Blair, the offending insofar as the assessment of culpability in this matter must be seen as at the lower end of culpability for this type of offence.  It is also to be noted that there was no penetration involved and each of the offences were of a particular short duration.

8As I said it is necessary to take into account the context of these matters, in particular the two uncharged actions involved the kissing that I referred to.  But of course while that is a correct assessment of the offending one of the aggravating factors is the grave breach of trust involved.  That breach of trust comes about from the relationship of the families as neighbours and in particular the age difference between Mr Stanton and this child.

9

The facts making up this matter were not reported for a period of approximately two and a half years thereafter and were finally reported to the complainant's mother in May 2014.  When faced with the allegations

Mr Stanton initially denied them and, indeed, made a no comment record of interview, to which he is totally entitled in May 14.  The matters subsequently resolved at committal into a plea and suffice to say the matter was heard before me as a plea as has previously been detailed in March of this year.

10As I said the circumstances of which Mr Stanton has pleaded guilty means that he now becomes subject, by way of the will of Parliament, to life reporting under the reporting regulations for sex offenders and he has signed an acknowledgement in that regard.

11

There has been an application for a forensic sample order.  Insofar as the victim herself the victim impact statement tendered was read to the Court. 

I think at the time when it was read I indicated such is always very difficult for a layperson, even a person as experienced as I might be in these type of matters, in understanding what is the impact.

12However given the type of behaviour involved and it’s, as I say, classification at the lower end, it must be seen that the reactions as detailed in the victim impact statement cannot wholly be seen as emanating from of these crimes.  Although as I say, one is not an expert on these matters.  It is clear that it is very much about breach of trust that causes disturbance in people's later lives, the extent of it is always a difficult issue.

13On behalf of Mr Stanton, Ms Blair tendered written submissions for which I thank her and they were marked Exhibit 1.  This has a somewhat unusual note because Mr Stanton comes before me having been sentenced by me on 5 June 2013 for similar offences involving an underage person.

14The offending that took place there was just at the start of the period that I am concerned with in this case.  However it involved a more serious matter, especially in regard to Charge 3 that I dealt with in that matter and also in regard to Charge 1, involved a more serious offence in the sense that the maximum sentence prescribed by the Commonwealth for the offence of procuring a person under the age of 16 for sexual activity was a matter of 15 years'.

15As I stress, again, that sentence involved legislation designed to protect children.  I placed Mr Stanton on a community corrections order and fined him in regard to all of those crimes.  That community corrections order was for a period of some five years and is still in existence.  Indeed, there is approximately three years to go.  Certainly the reports insofar as his conduct since that time have been excellent.  He has completed all of the work requirements and has been diligent in complying with the conditions.

16Insofar as the submission of Ms Blair she stressed the issue of remorse, the ongoing family support which I referred to in my earlier sentence, the rehabilitation that has been effected, again been demonstrated in the manner in which Mr Stanton has performed the community corrections order and the issues which were at the back of the earlier criminality clearly, obviously at the time of these offences there were similar issues.  They were the issue of the sickness of his own child in late 2010 and some relationship issues.  I made some comments about that last time.  In making those comments I do not, in any way, ascribe blame to anyone but Mr Stanton for this behaviour.

17Ms Blair sought a suspended sentence and/or a community corrections order for these crimes as by way of submission and stressed, of course, that the Court is required to take into account the issue of totality.  That is, now four years after these events occurred, had those crimes been taken into account at the time of my sentence in June 2013 the issue of totality would have been very much to play and still is very much to play.

18The prosecutor in final submission submitted that in these crimes, albeit that there was no dispute that they were low on the culpability scale or the heinousness scale, stressed that due to the breach of trust involved it was the prosecution view that a period of imprisonment was appropriate, albeit that a suspended sentence might alternatively be imposed.

19Indeed Ms Blair sought a suspended sentence for Mr Stanton in regard to these crimes, it was agreed by both counsel that that disposition was indeed available given the timing of the offences and the timing of the amending legislation.  However of course before one imposes a suspended sentence one has to be satisfied that it is appropriate to impose a period of imprisonment in all the circumstances.

20Looking at the matter in totality I have come to the view that imprisonment would not be appropriate in this case, it should not be thought that these are not serious offences.  The issue of breach of trust raises its head very strongly.

21However I am particularly impressed with the manner in which Mr Stanton has gone about his rehabilitation and that is no better summarised by the report, Exhibit C, that I have received which talks about his current activity under the community corrections order.  It was noted in the comments that he received the community corrections order in 2013, which is not expected to expire until 2018.  According to the records he had complied with the order and indeed completed 200 hours of community work within the first four months.  I note the comments made during the plea of the steps taken in regard to his employment to allow him to do that.

22It was also noted that he completed the sex specific program under the community corrections order.  That he presented as willing and able to comply with a community corrections order if one was imposed.  The recommendation was to the effect that he was suitable.  I have determined, in the circumstances, that that would be appropriate in this matter.  Mr Stanton, if you would stand please.

23By your plea you are obviously convicted of both of these matters.  You will be ordered, by way of sentence, to undergo a community corrections order.  The period to be imposed will be a period of three years. 

24Pursuant to the provisions of s.41 of the Sentencing Act 1991 (Vic), the community corrections order will apply to both offences. Given the principles detailed by the Court of Appeal recently in Boulton v The Queen [2014] VSCA 342, this is the most appropriate way to deal with you sentencing.

25Pursuant to s.48C of the Sentencing Act 1991 (Vic), you will be required to perform community work and I will set a period of 100 hours. However you have the whole three years to perform those and you can make your own arrangements. I would not like you to be placed in a position where you had to sacrifice your employment.

26I have ordered that you undergo programs to reduce the risk of re-offending and whether you need any further programs insofar as specific sex offence programs, it is probably to be doubted, but I will leave that to the persons who are supervising you.  I will impose an order as to supervision for the whole period. 

27I think that is all I need to do.  I do not see any reason, as I did not grant a forensic sample order in the last matter, why I should grant it in this case.  Given that I have contextualised these offences to a particular period in your life, Mr Stanton, I make the same remarks that I hope - I suppose I hope last time I would never see you again.  But I hope, insofar as all of this behaviour occurred at a particular time in your life, the steps you have taken since, the assistance you have had from your own family and friends are such to ensure that I will never see you again.

28I think they are the only matters that I need to attend to.  We will prepare the document and have you enter it.  You can take a seat. 

29Yes, I thank both counsel.  Mr Stanton, all the best, all right?  Thank you.

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